Pelz v. Shoecraft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 14 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
SHEILA PELZ,
Petitioner - Appellant,
No. 02-7099
v. (D.C. No. 01-CV-665-S)
(E.D. Oklahoma)
VICKIE SHOECRAFT,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McKAY, Circuit Judge.
After examining the brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
This is a 28 U.S.C. § 2254 prisoner appeal. Ms. Pelz was convicted in state
court of murder in the second degree–felony murder and of two counts of
accessory after the fact. Ms. Pelz filed a notice of appeal and designation of the
record with the Oklahoma Court of Criminal Appeals but failed to file a petition
in error by the required deadline. Accordingly, Ms. Pelz’s convictions and
sentences became final and she effectively waived appellate review.
Petitioner filed her § 2254 petition in the district court. Respondent filed a
motion to dismiss the petition as time barred. In her petition, Ms. Pelz claimed
that the limitations period should be equitably tolled because she missed filing
deadlines on state post-conviction proceedings due to ineffective assistance of
trial counsel. The district court found that Ms. Pelz had not demonstrated due
diligence in pursuing her federal habeas claims and dismissed her petition as time
barred. Finding no merit in any of Ms. Pelz’s arguments, the district court
declined to grant her a certificate of appealability. Petitioner then applied to this
court for a certificate of appealability.
In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
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deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
We have carefully reviewed Ms. Pelz’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s brief raises an issue which meets our standards for the grant of a
certificate of appealability. The district court carefully detailed Ms. Pelz’s claims
and set forth a time line with the relevant dates for her equitable tolling argument.
We are not persuaded that the alleged ineffective assistance of Ms. Pelz’s trial
counsel explains why Ms. Pelz waited over three years to pursue her second
application for post-conviction relief. “Mere attorney negligence does not justify
equitable tolling.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000); see also
Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000). A petitioner must also
proceed with diligence in pursuing her claim. See Miller v. Marr, 141 F.3d 976,
978 (10th Cir. 1998); Fisher v. Gibson, 262 F.3d 1135, 1143 (10th Cir. 2001).
We agree with the district court that “petitioner has not demonstrated due
diligence in pursuing her federal habeas claims, and her circumstances do not
warrant equitable tolling.” April 25, 2002, Order at 5. For substantially the same
reasons as set forth by the district court, we cannot say “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner.” Slack, 529 U.S. at 484.
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We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. 1
Entered for the Court
Monroe G. McKay
Circuit Judge
1
We determine that we have jurisdiction to hear this appeal because no
separate judgment was filed by the district court as required by Fed. R. Civ. P. 58.
The time to appeal does not begin to run until a Rule 58 judgment is entered. See
United States v. Torres, 282 F.3d 1241 (10th Cir. 2002).
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